Citation Nr: 0428972
Decision Date: 10/21/04 Archive Date: 10/28/04
DOCKET NO. 04-10 881 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to an increased (compensable) evaluation for
residuals of a right frontozygomatic fracture, with
anesthesia of skin on the right side lateral to the
right eye.
2. Entitlement to a total disability evaluation based on
individual unemployability due to service connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from September 1962 to
October 1962 and from September 1963 to December 1966.
This appeal to the Board of Veterans' Appeals (Board) arises
from a July 2002 rating decision of the Phoenix, Arizona,
Regional Office (RO) of the Department of Veterans Affairs
(VA).
The Board notes that a rating decision in February 2000
denied the veteran's claim of entitlement to service
connection for macular degeneration and cataracts of both
eyes and that, in a June 2003 letter, the RO notified that
the veteran that new and material evidence would be required
to reopen his claim. The Board also notes that, in July
2003, the RO notified the veteran that, in the absence of his
submission of any additional evidence, his claim for service
connection for a disorder of the eyes was not reopened. That
issue has not been certified for appeal and is not before the
Board at this time.
On June 8, 2004, the veteran appeared and testified at a
hearing before the undersigned Acting Veterans Law Judge at
the RO. A transcript of that hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002), and its implementing regulations, codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003), are
applicable to this appeal. The VCAA and the implementing
regulations provide, inter alia, that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim.
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4 (2003). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1
(2003).
Neuralgia, cranial or peripheral, characterized usually by a
dull and intermittent pain of typical distribution so as to
identify the nerve, is to be rated on the same scale, with a
maximum equal to moderate incomplete paralysis. See nerve
involved for diagnostic code number and rating. 38 C.F.R.
§ 4.124.
38 C.F.R. § 4.124a, Diagnostic Code 8207, pertaining to
neuralgia of the seventh (facial) cranial nerve, provides
that moderate incomplete paralysis warrants an evaluation of
10 percent. Severe incomplete paralysis warrants an
evaluation of 20 percent. Complete paralysis warrants an
evaluation of 30 percent. Note: Dependent upon relative
loss of innervation of facial muscles.
At the hearing in June 2004, the veteran testified,
"Sometimes it just feels like my whole face is just
completely numb."
In connection with the veteran's claims for a compensable
evaluation for residuals of a right frontozygomatic fracture,
with anesthesia of skin on the right side lateral to the
right eye, and for a TDIU, the RO requested that a VA Medical
Center schedule the veteran for medical examinations, to
include an examination by a specialist in neurology. At the
VA neurological examination in June 2002, a history of a
right facial fracture in an accident in service was noted.
The veteran complained of right-sided facial pain from the
right lateral orbital area to involve the right hemiface.
The pertinent objective finding was decreased facial
sensation on the right "in a V1-V2 and V3 distribution to
all modalities including splitting and tuning fork which is
nonphysiologic." The pertinent assessment was "Right
fascial [sic] anesthesia while he may indeed have had
traumatic V2 distribution neuropathy, currently the symptoms
as he reports them appear to extend beyond the area that
would be expected to be involved status post his fascial
fracture."
The Board notes that the report of the June 2002 VA
neurological examination did not address the rating criteria
of Diagnostic Code 8207 which include, in the veteran's case,
the relative loss of innervation of facial muscles, if any,
attributable to the service connected residuals of a
frontozygomatic fracture. The Board must, therefore, find
that the June 2002 VA neurological examination was inadequate
for rating purposes. The veteran later underwent a VA
general medical examination in November 2003, which was
conducted by a nurse practitioner. The report of that
examination did not address the medical issue of the loss of
innervation of facial muscles, if any, attributable to
residuals of the veteran's service connected frontozygomatic
fracture and, consequently, is also inadequate for rating
purposes. The Board finds that another VA neurological
examination is necessary to decide the veteran's increased
rating claim on appeal, see 38 C.F.R. § 3.59(c)(4), and this
case will be remanded for that purpose.
The Board points out to the veteran that, when a claimant,
without good cause, fails to report for a necessary
examination, a claim for an increased evaluation shall be
denied. 38 C.F.R. § 3.655 (2003).
The issue of entitlement to a TDIU is deferred, pending
completion of remand action.
Under the circumstances, this case is REMANDED to the RO for
the following:
1. The RO should arrange for the veteran
to be scheduled for a neurological
examination to determine the current
severity of residuals of a right
frontozygomatic fracture, with anesthesia
of skin on the right side lateral to the
right eye, to include a finding as to the
relative loss of innervation of facial
muscles, if any, attributable to the
service connected residuals of a
frontozygomatic fracture. The examiner
must review the pertinent medical
evidence in the claims file, to include
the report of the June 2002 VA
neurological examination. The examiner
should be provided with a separate copy
of this remand for his or her review.
2. Once the foregoing development is
completed, the RO should readjudicate the
veteran's claims based on consideration
of all of the evidence of record. If the
RO denies the benefits sought on appeal,
it should provide the veteran and his
representative a supplemental statement
of the case. The veteran and his
representative should be afforded the
appropriate opportunity to respond
thereto.
Thereafter, subject to current appellate procedure, the case
should be returned to the Board for further consideration, if
in order. The purpose of this REMAND is to comply with
governing adjudicative procedures. By this REMAND, the Board
intimates no opinion as to the ultimate disposition of the
appeal. No action is required of the veteran unless he
receives further notice. He does, however, have the right to
submit additional evidence and argument on the matter the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. §§ 5109B, 7112).
_________________________________________________
SUSAN J. JANEC
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).